Weekend Legal Updates

Saturday & Sunday, 2nd & 3rd April 2022

Legal Awareness :- CONSTITUTION OF INDIA

Part – XII FINANCE, PROPERTY, CONTRACTS AND SUITS

CHAPTER – I FINANCE

Distribution of Revenues between the Union and the States

Article – 280  Finance Commission

(1) The President shall, within two years from the commencement of this Constitution and thereafter at the expiration of every fifth year or at such earlier time as the President considers necessary, by order constitute a Finance Commission which shall consist of a Chairman and four other members to be appointed by the President.
(2) Parliament may by law determine the qualifications which shall be requisite for appointment as members of the Commission and the manner in which they shall be selected.
(3) It shall be the duty of the Commission to make recommendations to the President as to—
(a) the distribution between the Union and the States of the net proceeds of taxes which are to be, or may be, divided between them under this Chapter and the allocation between the States of the respective shares of such proceeds;
(b) the principles which should govern the grantsin-aid of the revenues of the States out of the Consolidated Fund of India;

(bb) the measures needed to augment the Consolidated Fund of a State to supplement the resources of the Panchayats in the State on the basis of the recommendations made by the Finance Commission of the State.
(c) the measures needed to augment the Consolidated Fund of a State to supplement the resources of the Municipalities in the State on the basis of the recommendations made by the Finance Commission of the State.
(d) any other matter referred to the Commission by the President in the interests of sound finance.
(4) The Commission shall determine their procedure and shall have such powers in the performance of their functions as Parliament may by law confer on them.

Weekend Legal Updates :-

  1. Maharashtra Cabinet minister and Nationalist Congress Party (NCP) leader Nawab Malik has approached the Supreme Court challenging an order passed by the Bombay High Court rejecting his plea seeking release from judicial custody in the money laundering case involving underworld don Dawood Ibrahim which is being investigated by the Enforcement Directorate (ED).
  2. the Bombay High Court held that a validated caste certificate of one person would stand as conclusive proof of the social status of their patriarchal relative.  (Bharat Bhagwant Tayade vs The State of Maharashtra & Ors.)
    • the Court warned, We sound a caution to not only to the Scrutiny Committee at Thane but also to all other Scrutiny Committees against venturing to disobey orders of superior Courts and scrupulously follow the directions issued by the superior courts. We make it clear that, in future, if it comes to our notice that these directions have not been followed by any of the Scrutiny Committees, this Court shall take a serious view of the breach that may be committed by any of the Scrutiny Committee.
    • We find in the present case that Scrutiny Committee has acted in utter disregard to the law laid down by the Apex Court. If a quasi judicial or any judicial authority fails to maintain the judicial discipline, it would result in lowering down the prestige of the system of administration of justice and undermine the respect the citizens of India hold for it
    • The Court also stated that a document stood as conclusive proof for one person would also stand as conclusive proof of social status of another person, if such other person is a paternal relative of first person possessing the validity certificate except in a case where the validation of caste or tribe certificate is vitiated by fraud, misrepresentation of facts or suppression of facts.
  3. The Kerala High Court held that Maintenance Tribunals under the Senior Citizens Act have the jurisdiction to issue directions to the children or relatives of senior citizens to not deprive them of their earnings.  (Leelamma Eapen v The District Magistrate, Kottayam)
    • the Court said in its judgement, The power of the Maintenance Tribunal under the Senior Citizens Act is not circumscribed to mere ordering of monthly allowance for maintenance of senior citizen where the relative or children neglect or refuses to maintain the senior citizen or parent, but to ensure maintenance from own earnings to lead a dignified life. The Senior Citizens Act is intended to ensure that senior citizens are not left destitute, or at the mercy of their children or relatives.
    • The Maintenance Tribunal, on the application of the parent under Section 5 can issue direction to the children, who have obligation to maintain the parent, not to deprive her access to her earnings and residence so that she maintains herself and lead a normal life.
    • Respondents 4 (son) and 5 (daughter-in-law) cannot just walk away from the moral and statutory obligation to maintain the petitioner. They cannot be permitted to take advantage of their own wrong. The fact that the petitioner has approached other forums and secured orders for taking yield from the property and for peaceful stay at the residence, will not restrain the petitioner to seek enforcement of order (of the tribunal).
  4. The Gujarat High Court refused to interfere with a Family Court’s order where an application by the petitioner-father for interim custody of his children aged 17 and 12 years was rejected. (Shehjada Hanifbhai Patel v Bilkis)
    • the Family Judge had considered the allegations of extra-marital affairs of the wife and opined that there was nothing on record to show how it was unsafe for the children and how their life was at stake.
    • the Court said, “The learned Family Judge has committed no error, much less an error apparent in the face of it, which requires interference at the hands of this Court ina petition under Articles 226/227,”
  5. A Special Court in Bengaluru, set up to try criminal cases against Members of Parliament and Members of Legislative Assemblies has ordered that a case for criminal misconduct be registered against former Karnataka Chief Minister BS Yediyurappa for alleged illegal denotification of land in Bengaluru.  (Vasudeva Reddy v. BS Yediyurappa)
    • the Court said, I am of the considered opinion that there are sufficient material to proceed against the accused by registering special criminal case and summoning the accused No.2 for his attendance and give an opportunity to the complainant to establish his allegations against the accused No.2. I am of the considered opinion that there is nothing on record to disbelieve the case of the complainant at this stage. He has made out a prima facie case against the accused for the offence punishable under Sec.13(1)(d) R/w Sec.13(2) of the Prevention of Corruption Act, 1988.
  6. Activist Medha Patkar has filed a public interest litigation (PIL) petition before the Bombay High Court seeking directions to the Maharashtra government to urgently fill up the vacancies in the State Police Complaints Authority (SPCA) and to provide adequate and timely release of funds and necessary facilities including website for SPCA.
  7. The Kerala High Court upheld a single-judge’s order that had declined to interfere with the consecration of new Catholicos at the Malankara Orthodox Syrian Church, which was done without canonically inviting the Patriarch of Antioch. (KA John & Anr v. State of Kerala & Ors.)
    • the High Court held, “In this case, we find there exists no public law element. If the consecration of Catholics is not in accordance with the directions of the Apex Court, the executing court can very well ensure the implementation of the directions. It is for the executing court to decide whether the directions have been followed or violated and to decide on the execution of the directions. This Court cannot assume violation of direction, to issue a writ of mandamus without essential fact findings. That fact finding cannot be embarked upon unless such fact finding overlaps with the public law element,”
    • the Court said, “If there is no public law element to invoke Article 226 of the Constitution, the High Court cannot act on prayers to implement the judgment of the Apex Court. It is to be noted that as far as the law is concerned, the decision in K.S Varghese case is rendered on private law premise as the disputants were private parties and the dispute related to the Malankara Church,”
  8. Today the Supreme Court held that no one can be permitted to take the benefit of orders that have subsequently been set aside by a higher court.  (Mekha Ram and Others v. State of Rajasthan and Others)
    • the settled position of law, no party should be prejudiced because of a court order.
    • “No one can be permitted to take the benefit of the wrong order passed by the court which has been subsequently set aside by the higher forum/court,” 
    • “The restitution principle recognizes and gives shape to the idea that advantages secured by a litigant, on account of orders of court, at his behest, should not be perpetuated. In the case of Ouseph Mathai v. M. Abdul Khadir, reported in (2002) 1 SCC 319, it is observed and held that after the dismissal of the lis, the party concerned is relegated to the position which existed prior to the filing of the petition in the court which had granted the stay.“
  9. The Supreme Court reiterated that the highest bidder in an auction does not have any legal and equitable right to claim the auctioned property unless the same is approved by the State government or any other authority.  (Municipal Committee, Barwala, District Hissar, Haryana Through its Secretary/President v. Jai Narayan and Company and Another)
    • the Punjab and Haryana High Court which had affirmed claim of the title and possession of the respondent on an auctioned property of which he was the highest bidder.
    • The Court was of the view that the communication relied upon by the appellant was not the communication by the Deputy Commissioner to the Municipality or to the plaintiff that the sale stands confirmed. Instead, it was an inter-departmental communication with no endorsement of the copy of the said communication to the plaintiff. Therefore, the Court noted that in the absence of any approval granted, no right would accrue.
  10. On Friday the Supreme Court expressed anguish in an arbitration case in which the arbitral award passed in 1992 remained pending for execution despite passage of more than 30 years.  (M/S Chopra Fabrications and Manufacturers Pvt Ltd v. Bharat Pumps and Compressors Ltd and Anr.)
    • the Court observed, “This is a glaring example of frustrating the arbitration proceedings under the Arbitration Act. The award has been passed in the year 1992 and the execution petition is of the year 2003, which is still reported to be pending,” 
    • ”Even as per the new Commercial Courts Act, 2015 the commercial dispute is required to be decided and disposed of at the earliest and within the stipulated time provided under the Act, namely, one year,”
    • Insofar as the present case is concerned, considering the fact that the Award which is sought to be executed is of the year 1992 and the execution proceedings are pending since 2003, we direct the executing court to finally decide and dispose of the execution petition within a period of four weeks from the date of receipt of the present order.
    • the Bench gave directions to the Registrar General of the Allahabad High Court to place on record the following details:-
      • how many execution petitions to execute the Award both under the Arbitration Act, 1940 and under the Arbitration and Conciliation Act, 1996 are pending in the subordinate courts/executing courts in the entire State.
      • how many Section 34 applications are pending in the entire State and from which year.
      • how many Section 37 applications are pending before the High Court and from which year.
  11. On Saturday A petition has been filed before the Karnataka High Court seeking action action against a number of State ministers, Members of Legislative Assembly (MLAs) and Members of Parliament (MPs) for hate speech against the Muslim community.  (Mohammed Khalelulla v. State of Karnataka and Ors)
    • repeated speeches have been made across Karnataka by people’s representatives and leaders deliberately attacking Muslims.
    • The petitioner had made a representation to take immediate action against a number of ministers, including KS Eshwarappa, MP Renukacharya, CT Ravi, Prathap Simha, Rishikumara Swamy, Pramod Mutalik, Basanagouda Patil Yatnal, Shobha Karanjadale, Tejasvi Surya and Sullibele Chakrabarthy, who are all Members of the Legislative Assembly of Karnataka or Members of Parliament, alleging that they made hateful and inflammatory speeches which could lead to violence and polarisation in society.
  12. The Supreme Court Bench faced off against the Bar in a friendly T-20 cricket match on Sunday in which the judges’ team led by Chief Justice of India (CJI) NV Ramana inflicted a comprehensive defeat on the Bar.
    • The CJI team scored 160 runs for the loss of 4 wickets in the allotted 20 overs.
    • Chasing the target of 161, the Supreme Court Bar Association team were bowled out for 88 in 12.4 overs.
    • The match was held at Modern School, Barakhamba.

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